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Decisions – Miss.S.Ct. – Oct. 19. 2017

Sheriel F. Perkins v. Carolyn McAdams – election contest – Carolyn McAdams won the 2013 mayoral race in Greenwood by 206 votes. The challenger contested the election claiming illegal voting and fraud. At trial she produced evidence only that fifty two
absentee ballots were wrongly counted and one absentee ballot and nine affidavit ballots
were wrongly rejected. Her claims of illegal voting and fraud had no evidentiary
support. The trial court granted a directed verdict for McAdams. Perkins appealed but the contested mayoral term ended June 30, 2017 making it moot. Perkins wants her issues considered under the mootness doctrine but there was no evidence that anyone voted illegally in a precinct outside of his residence. There were only some election materials that ended up in the wrong precincts. The Court declines to address the merits. McAdams cross-appealed on attorneys fees. The Court affirms the trial court’s denial of McAdams’s motion to alter the judgment to include a sanction of attorney’s fees. But the Court reverses and remands the trial court’s award of $6,440 in attorney’s fees to Perkins.

Johnson & Johnson, Inc. and Ortho-McNeil-Janssen Pharmaceuticals, Inc. v. Brenda Fortenberry, as the Conservator of the Estate of Person of Louise Taylor – risperdal – Louise Taylor began suffering psychotic episodes when she was 71 years
old. Her doctor prescribed Risperdal. After three years she developed tardive dyskinesia. In 2002 she sued the manufacturer/distributer and her doctor. The jury awarded Taylor $650,000 in actual economic damages and $1.3 million in noneconomic damages, for a total damages award of $1,950,000. On appeal, the Court agrees with the defendants that they were entitled to a directed verdict on the failure to warn claim. Risperdal contains a sufficient warning that tardive dykinesia is a known risk. However, there was a jury question as to whether a material misrepresentation or omission existed in the marketing materials and information provided to Dr. Rhoden, namely, that the tardive dyskinesia risk from Risperdal was low and materially lower than the tardive dyskinesia risk from Haldol. There was also a jury question as to whether Dr. Rhoden relied on Janssen’s alleged misrepresentation and whether Taylor suffered damages. There will have to be a new trial, though, because of the defective jury instructions which omitted essential elements of the negligent misrepresentation claim. The Court also holds that the negligent marketing and negligent advertising claims are not cognizable under Mississippi law to the extent that they are not part of a claim for misrepresentation.Edward Springer v. Ausbern Construction Co., Inc. – gov. contract – Chickasaw County needed 1.398 miles of road constructed. Ausbern planned to submity a bid and consulted the County Engineer Edward Springer to get specs. Ausburn’s bid was the lowest and it did the road. Afterwards it realized that the amount of “topping” (asphalt overlay) used was much more than that estimated by Springer and contacted Springer and the State Aid office to make a claim for the excess material. Springer responded and admitted that there had been an error in the original calculations, and that the project should have taken 10,605 cubic yard of fill material. Ausbern filed suit against the Chickasaw County Board of Supervisors for breach of contract and against Springer alleged that Springer maliciously interfered with the contract. At the conclusion of the trial, the jury returned a verdict in favor of Ausbern awarding $387, 793.50 from the Chickasaw County Board of Superiors and $182,500 from Springer for tortious interference of a contract. The COA reverses and renders. The Miss.S.Ct. grants cert and affirms the COA.

While we do not disturb the dispositive holding reached by the Court of Appeals resulting in the rendered judgment in favor of Springer, we grant Ausbern’s petition for writ of certiorari resolve the Court of Appeals’ perceived conflict between Zumwalt v. Jones County Board of Supervisors, 19 So. 3d 672 (Miss. 2009), and Whiting v. University of Southern Mississippi, 62 So. 3d 907 (Miss. 2011).

In short, we hold that Whiting did not overrule, sub silentio, Zumwalt as the Court
of Appeals presumed in reaching its alternative holding. See Springer, 2016 WL 4083981, at *5 (¶ 22). To be certain, we overrule Whiting to the extent it held that a claim for tortious interference with a contract is subject to presuit notice requirements of the Tort Claims Act. As more fully explained below, Ausbern’s claim against Springer in his individual capacity for tortious interference with the contract did not trigger the presuit notice requirements of the Tort Claims Act.

Kendall Martin v. State of Mississippi – drugs found pursuant to traffic stop – Kendall Martin was convicted of possession of more than one kilogram of marijuana with intent to distribute. The marijuana was found after Martin was stopped for crossing the fog lane on I-20 eastbound in Rankin County. When the officer stopped Martin, he said he could smell air fresheners and a faint smell of marijuana. The officer testified that Martin gave him permission to search the vehicle. The back hatch contained a duffel bag with almost 10 pounds of marijuana. Martin filed a motion to suppress alleging that the officer lacked reasonable suspicion to stop him, that the stop was motivated by racial profiling, and that the officer extended the stop to search the car after the investigation of the traffic violation had concluded. The Miss.S.Ct. affirms.

Terry Pitchford v. State of Mississippi – death penalty/competency – Pitchford was convicted and sentenced to death for killing Reuben Britt whose body was found in the
Crossroads Grocery store in Grenada County. His case was affirmed on direct appeal. Thereafter he filed a pcr. The Mississippi Supreme Court denied all claims
except Pitchford’s claim pertaining to a competency hearing. This Court ordered that the
matter be remanded to the trial court for a hearing on whether Pitchford was competent to stand trial at the time the criminal trial took place in February 2006. A hearing was had and the trial court determined that Pitchford was competent. On appeal, t he Mississippi Supreme Court affirms.

Perhaps most disturbingly, Sparks indicated to these three lawyers that he received a call during the Clarksdale trial—seemingly at or near the beginning—from a friend with an aunt on the jury. Tr. 2377, 2392, 2397. See, e.g., Tr. 2377 (“He told me that his best friend called him [and] said, ‘Are you up in Clarksdale?’ He said, ‘I am.’ He said, ‘My aunt is on the jury.’ …. ‘He said she was on the jury.’”) (emphasis added); Tr. 2397 (“I believe he said it was his best friend, whose aunt was on the jury or being picked for the jury.”) (emphasis added). Sparks described the jury’s internal dynamics and deliberations in a way that clearly suggested communication with one or more jurors during the trial. See, e.g., Tr. 2376 (“He told me that . . . [t]here was a lady on the jury that couldn’t count. And they spent two days trying to teach her how to count, and that just never worked out.”); Tr. 2389 (“He just said, ‘We tried to teach the lady how to count.’”).

Hyundai filed a motion for new trial and asked to conduct discovery on the issue. The trial court denied the motion. This was one of many issues on appeal. The Mississippi Supreme Court stays the appeal and remands for the court to allow for full discovery and hearing on the issue of whether the jury was subject to outside influences.

The Court grants cert in Mississippi Department of Wildlife, Fisheries, and Parks v. Candace Webb, Thomas Harper, and Kathleen D. Webb – boating accident/Tort Claims Act (the link is to the COA opinion). On August 22, 2009, MDWFP officers observed a boater speeding on the Tchoutacabouffa River. They navigated their patrol boats into the river to investigate and stop the boater. The boater came to an initial stop in the middle of the river in an area that was heavily traveled and used by others. Law enforcement instructed the boater to follow them down river into the nearest straightaway which was a safer area to stop and question the boater. The driver agreed and followed at first but then turned and fled whereupon it collided with a vessel operated by Christopher Webb, killing Webb and injuring his passenger Shane Webb. The boater, Donald C. Bernius, pled guilty to boating under the influence causing death and injury, and was sentenced to twenty years. The plaintiffs sued MDWFP. After a bench trial, the court held for the plaintiffs finding that the MDWFP officers acted in reckless disregard for the safety of others when the officers told a boater to move to a safer area after they stopped him, but the suspect suddenly fled and caused a fatal boat collision. The circuit court awarded awarded $466,666.77 to Candace Webb and $33,333.33 to Kathleen Webb. The MDWFP appeals. The COA reversed and rendered.

And the Court declines to address a situation involving the Hinds County County Court Judges in In Re: Hinds County, Mississippi Board of Supervisors a/k/a Hinds County Board of Supervisors for lack of standing.